Big Win for Employers? Federal Court Invalidates 2012 "Recess Appointments" to the National Labor Relations Board

White and Williams Labor and Employment News Alert | January 29, 2013
By: John Baker and Stephanie Kobal

On January 25, 2013, the Court of Appeals for the District of Columbia declared unconstitutional President Obama’s 2012 "recess appointments" of three members to the National Labor Relations Board.  The appointments were challenged under Article II, Section 2, Clause 3 of the U.S. Constitution (known as the “Recess Appointments Clause”), which provides that the “President shall have the power to fill up vacancies that may happen during the Recess of the Senate...”.  In the case, the employer challenging the NLRB’s jurisdiction contended that the recess appointments were invalid, and the Recess Appointments Clause was inapplicable because the Senate was not in recess at the time of the appointments.

In Noel Canning v. NLRB, the court examined the meaning of the term “Recess.”  The NLRB argued that the term means any break in Senate business.  On the other hand, Noel Canning argued that “Recess” refers only to the period between sessions of the Senate when the Senate is unavailable to receive and act upon nominations from the President.  The Court sided with Noel Canning, opining that following the logic of the NLRB would preclude the Senate from providing advice and consent, which is vital to the separation of powers.  Because the recess appointments were not made during an actual Senate recess, the President’s appointments were invalid.  As a consequence, the NLRB did not have a quorum when it rendered its decision in that case.  Thus, the underlying decision of the NLRB is, by necessity, vacated.

Not surprisingly, the NLRB believes that the ruling applies only to the Noel Canning case, and that the actions of the NLRB will ultimately be upheld, which may signal a desire to appeal the court’s decision.  One ground on which the NLRB may appeal is that the court did not have jurisdiction to hear the Constitutional challenges, as those issues were not asserted before the NLRB.  Despite this jurisdictional issue, the ruling has the potential to invalidate hundreds of NLRB rulings over the past year.  Further, the NLRB may now effectively be foreclosed from issuing future opinions since it lacks a quorum.  It is unlikely, however, that the Board will discontinue its decision-making function voluntarily.

Still, the decision puts any party thinking of appealing a decision of an administrative law judge to the NLRB in quite a predicament.  Based on the Noel Canning decision, arguably the NLRB currently has no authority to issue Board decisions.  This lack of authority begs the question – what should employers who have cases pending before the NLRB do?   Many factors would go into this analysis, and employers should consult with a labor attorney for advice.

We will continue to update our current and prospective clients of further developments in this area.  Please contact John K. Baker (610.782.4913, bakerj@whiteandwilliams.com) or Stephanie A. Kobal (610.782.4942, kobals@whiteandwilliams.com) or any member of our Labor and Employment Group for further assistance. 

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation with any specific legal question you may have.